Hill v. Gibson

Smith, J. (after stating the facts). It appears that at the time of the depredations of defendant’s stock, the fencing district was not enclosed with a lawful fence, and thát the gates were down, and, consequently, stock could, come in or go out of the fencing district at will. The court’s instruction, numbered one, and defendant’s instruction numbered two, which was given are apparently in conflict, for this second instruction tells the jury that defendant would not be liable for the damage done by his stock if the fencing district was not enclosed by a lawful fence. Under the evidence, this instruction would have directed a verdict for the defendant, but the jury’s failure to follow it in this case is not prejudicial error for the reason that it is not a correct declaration of the law. The jury evidently followed the court’s first instruction, which is the law. St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154. • These fencing districts are provided for by law. Sections 1378 to 1413, Kirby’s Digest. These sections provide the procedure for their organization and contemplate that considerable expense will be incurred upon their creation, and provision is made for their maintenance and protection. When the order of the county court is made, the fencing district becomes a permanent entity, until it is dissolved-; but until it is dissolved, the law fixes the rights and liabilities of residents within the district. The petition for the establishment of the district specifies what stock the petitioners wish to restrain from running at large, and when the district is1 established, the court makes an order restraining the stock* mentioned in the petition, from running at large within such district, and the fencing district law applies to all such stock'as are so mentioned. Kirby’s Digest, section 1378. And, thereafter, it is unlawful for any person, owning or having control of stock that has been restrained from running at large, to knowingly permit such stock to run at.large within the territory comprising such fencing district, and any person, who violates the law by so doing, subjects himself to a fine. Section 1405, Kirby’s Digest, deals with the same subject and provides for a double liability for damages done. It is as follows : ‘ ‘ Sec. 1405. After any fencing district has been inclosed by a good and lawful fence, it shall be unlawful for any person who is the owner, or who has control of any kind of stock, to let the same run at large in said district, and any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction, shall be fined in any sum not less than one nor more than fifty dollars, and, in addition to the above fine, shall be liable for double the amount of any damages that any person may sustain by reason of said stock running at large in said district, to be recovered by action before any court having competent jurisdiction. Provided, this section shall not prohibit any person from fencing his or her lands, or any part thereof, separately, and pasturing the same. ’ ’ The court’s second instruction in effect interprets this section, as if it read, ‘ ‘ after any fencing district has been inclosed by a good and lawful fence, and, during the time, the same is maintained, it shall be unlawful, etc.” We do not think it a fair interpretation of the fencing law to say that the order of the court, establishing the district is effective only when the fences are lawful and the gates are closed, but we rather think that after the court has made its order, establishing the district and prohibiting stock from running at large, and after a lawful fence has once been built, that the order remains effective until the district is dissolved. Appellant has collected a number of cases, which, in effect, hold that the owner of stock is not liable for the trespasses of his stock unless they enter a close which is enclosed by a fence which the law has said shall be a lawful one, unless the owner wilfully drives his cattle or stock upon such defectively and insufficiently enclosed premises, in which last event, he would be liable without reference to the legal sufficiency of the fence. But it would be abstract to consider here the liability of the owner of stock living without the district for damages for the trespass of his stock upon the lands embraced in a fencing district, enclosed by a fence which was not a lawful one. The defendant here resided in the district, and when he turned his stock loose, they would be unrestrained from entering upon any land Avhere pasturage was good Avithin the district. We conclude, therefore, that the judgment is correct, and it is accordingly affirmed.